Federal jurisdictional changes intersects with NH’s wetlands and water pollution regulation
A half century after the U.S. Congress passed the Federal Water Pollution Control Act, more commonly known as the Clean Water Act (CWA), five justices of the U.S. Supreme Court, in Sackett v. Environmental Protection Agency, narrowed the scope of the federal government’s jurisdiction to regulate discharges of pollutants into “waters of the United States” (WOTUS).
The Sackett decision clarified conflicting definitions of WOTUS that evolved over time, and reduced the geographic reach of CWA jurisdiction eliminating many wetlands and streams from federal protection.
In doing so, the court has limited the jurisdiction of the two federal agencies responsible for implementing the CWA — the U.S. Army Corps of Engineers (ACOE) and U.S. Environment Protection Agency (EPA) — to regulate discharges of pollutants into such waters.
The CWA authorizes the ACOE and USEPA to administer Section §404 permitting and enforcement that prohibits unpermitted discharges of dredge and fill in wetlands. Section §402 that prohibits discharges of pollutants into WOTUS from any source without a permit is administered by EPA alone.
Jurisdiction under both §402 and §404 depend on the same statutory definition of WOTUS. Sackett only considered wetlands permitting regulated under §404. It did not alter or overrule the court’s earlier decision in County of Maui, Hawaii, v. Hawaii Wildlife Fund (2020) that expanded §402 jurisdiction over industrial discharges into unregulated groundwater that is indirectly conveyed (through groundwater) into WOTUS. In the Maui case, the court held that such indirect discharges are covered by §402 if they are the “functional equivalent” of direct discharges into WOTUS.
Until the Sackett case, the U.S. Supreme Court’s 2006 decision in Rapanos v. United States set forth the legal framework for the definitional uncertainty manifested in judicially invalidated EPA rulemaking efforts over the scope of the CWA’s jurisdiction.
In the Rapanos case, the court was asked to determine the scope of the CWA’s jurisdiction over wetlands that are not traditionally “navigable waters” as defined by the act.
In the Sackett case, the petitioners expressly asked the court to decide whether the Rapanos decision should be revisited “to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act.”
The court ultimately adopted the test set forth in Justice Scalia’s plurality opinion that federal jurisdiction should extend only to “permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface water connection to” such permanent waters.
Now jurisdictional wetlands “must be indistinguishably part of a body of water that itself constitutes (WOTUS).” This means that, following Sackett, wetlands for §404 purposes that otherwise possess a hydrological nexus to traditional navigable waters are not within federal jurisdiction if they are otherwise “distinguishable from any possibly covered waters,” (i.e. they lack a continuous surface water connection.) The court also limited all covered waters to permanent, large, continuously flowing or standing waterbodies.
While the Sackett decision settled the CWA’s federal jurisdiction in the §404 wetlands context, it did not overrule or amend the Maui case that established §402 jurisdiction over certain indirect discharges.
So, for now, indirect discharges that are the “functional equivalent” of direct discharges to WOTUS still require §402 NPDES permits pursuant to Maui’s decision.
Filling now non-jurisdictional wetlands could trigger §404 jurisdiction if the discharges are indirectly conveyed to a traditional navigable water, (i.e., a WOTUS).
Despite the recent evolution of federal authority in this area, many states, including New Hampshire, that administer their own robust wetland and water pollution laws may not experience significant changes.
The regulated community should be aware that filling and dredging of wetlands that are no longer subject to federal authority may still require state wetland permits pursuant to separate state statutes.
Even if some pollutant discharges, including industrial wastewater or stormwater, may no longer be subject to federal §402 jurisdiction, state permitting programs applicable to pollutant discharges likely may apply.
Ultimately, as EPA attempts, for the tenth time, to establish regulations determining the reach of the CWA following Sackett — regulations that will almost certainly be challenged in litigation — the regulated community is well advised to consult with qualified legal counsel to navigate the federal jurisdictional changes and the intersection of them with state environmental laws and permit programs.
Viggo Fish is a member of McLane Middleton’s Administrative Law Department. He be reached at viggo.fish@mclane.com.
